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ALTHOUGH THE BETTER PRACTICE IS TO SUBMIT A SEPARATE AFFIRMATION, DEFENSE COUNSEL’S PRIMARY AFFIRMATION IN SUPPORT OF THE MOTION TO COMPEL PLAINTIFF TO SUBMIT TO A VOCATIONAL EXAM DESCRIBED THE GOOD FAITH EFFORTS TO RESOLVE THE ISSUE, THE MOTION TO COMPEL WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined Supreme Court was not required to deny defendants’ motion to compel plaintiff to submit to a vocational exam because defense counsel did not submit a separate affirmation demonstrating a good faith effort to resolve the dispute. The requirements of 22 NYCRR 202,7 (c) were met in the primary affirmation submitted is support of the motion. The Second Department also determined the plaintiff was properly ordered to submit to a vocational rehabilitation examination in this Labor Law personal injury action:

… [T]he Supreme Court was not required to deny that branch of the defendants’ motion on the ground that the defendant failed to submit an affirmation attesting to a good faith pre-motion attempt to resolve the dispute with the plaintiff. While it may be the better practice for the movant to detail such good faith efforts in an affirmation separate from the affirmation addressing the merits of the motion, under the circumstances of this case, the requirements of 22 NYCRR 202.7(c) were satisfied by the primary affirmation of counsel submitted in support of the motion wherein counsel detailed her efforts to obtain the plaintiff’s compliance with the extant court order, including the failure of the plaintiff to appear for a duly noticed examination and the failure of the plaintiff’s counsel to respond to correspondence, submitted with the defendants’ motion papers, seeking the plaintiff’s voluntary cooperation. Thus, the defendants amply demonstrated that the plaintiff was refusing to voluntarily cooperate with a court-ordered examination … . …

… [T]he plaintiff was noticed and directed to appear for a medical examination to be conducted by a vocational rehabilitation specialist on February 26, 2018. The plaintiff failed to respond to the notice or appear for the examination. Given the nature of this action and the parties’ past discovery disputes, the Supreme Court providently exercised its discretion in granting that branch of the defendants’ motion which was pursuant to CPLR 3124 to compel the plaintiff to submit to a vocational rehabilitation examination … . Encalada v Riverside Retail, LLC, 2019 NY Slip Op 06066, Second Dept 8-7-19

 

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